One Issue at a Time
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11 April 2011
Q: I got an inquiry from a prospective resident who wants to rent a home I have available. He is working overseas and will be moving here in a few weeks but I haven’t actually spoken with him; just traded emails.
I sent him an application and asked him to return it with copies of his passport and a credit check fee. He just replied asking for my bank ACA and account number so he could just transfer money into my account rather than send a check. What do you think; should I give it to him?
A: Absolutely not. This is a pretty common scam that would enable this person to drain your bank account. Never provide personal information, including banking information, to a stranger over the internet.
Rather, stick to your original request; get a completed application, a "certified" copy of his passport, and an international money order to pay for the credit screening. Certified copies of passports are available through the local embassies.
Q: One of my residents wants to replace his roommate with another. Seems he has already done this, and is just now getting around to asking for my permission. I don’t really mind; the last roommate was a bit of a flake. If I want to allow this, what is the best way?
A: There are several possibilities, but they will depend on the type of rental agreement you currently have, and who the parties are. If your original tenant is the only party to the lease, then you have two possibilities.
The first would be to leave the rental agreement intact, respond in writing to your tenants’ request for permission to sublet by granting permission to sublet to this specific person, and no others. This keeps the original rental agreement intact, without altering any terms.
It keeps the tenant in a superior position over his subtenant thereby allowing him a remedy to remove him if the subtenancy doesn’t work out, without bothering you.
The second method would be to enter into a new rental agreement, listing both tenants on the agreement as authorized occupants, making them jointly and severally liable to perform.
This is generally a cleaner method for you, keeps it simple, but it elevates the new roommate to the same position as your original tenant, making them equal. If the original lease included the former roommate, then ideally, you will request and receive a written notice from the former roommate stating that they have moved out of the unit, and that they are relinquishing their right to the security deposit. Do not "alter" the original agreement by just adding the new roommate’s name. Any alteration to a contract that is not signed and acknowledged by all parties may void that agreement.
Q: I recently sent a "Three-Day Notice to Pay Rent or Quit" by certified mail. The tenant signed for it, and I got the receipt back. Is this good enough?
A: No. The statute governing service is explicit. Certified mail with a return-receipt is not proper service on its own. To avoid trouble with your eviction action, stick to the specific requirements of Code of Civil Procedure Section 1162.
The basic options are personal delivery, substituted service on another person of suitable age or discretion at the resident’s home or business and a mailed copy, or the posting of the notice in a conspicuous place on the premises plus a mailed copy. If you strictly follow the language and dictates of the statute, you won’t have a problem if you are forced to file an eviction.
Q: We have a guesthouse in the back yard of our home in Fullerton. The place has been there since we moved in. Anyway, after the kids went off to college, we started renting it out. The current tenant signed a lease to pay rent plus their prorated portion of the monthly utilities.
I am about to serve a 3-Day Notice to Pay Rent or Quit, but I recently heard that I couldn’t place the utilities in the 3-Day Notice. How can I recover the utility portion?
Also, what if the resident pays the rent, but fails to pay the utilities? Should I just keep a running balance of back-due utilities, and separate it from the rent?
A: Let’s go through this one issue at a time. First, the utilities can be demanded through the service of a 3- Day Notice to Perform or Quit for Breach of Covenant. The Notice would specify that the tenant has three days to pay the precise amount of the utility bill, and the month for which the utility bill is due.
It is important to never carry any charge, whether it is rent, late fees, or utilities into the following month. This is because you can find yourself in an endless cycle, with the tenant never managing to catch up.
Also, when the time comes for you to take action, a long series of accepted late payments could result in a waiver on your part of the right to receive rent on time, or to enforce a late fee or utility provision. As such, even though the utility payment may be small when compared to the rent, it is still an obligation under the lease, and it should be enforced like any other provision.
